Bills on UR, WCIS Reporting, QMEs Move Forward in Legislature

“The naysayers will say that moving away from the MTUS, and easing the limitations on chiropractic treatment as well as physical therapy, will create more fraud in the system, both with the doctors and applicants,” Alan Gurvey said. “However, obviously people are understanding that legitimately injured workers need better medical attention and that the doctors have to be doctors, and not simply slaves to the insurance companies and employers.”

Bills in the California Legislature that would extend salary-continuation benefits for police and firefighters recovering from catastrophic injuries, and reinstate the qualified medical evaluator designation for neuropsychologists, were unanimously passed out of committee, along with three other workers' comp measures.

At the same time, the head of the Senate Labor and Industrial Relations Committee amended a bill he introduced to propose higher penalties for claims administrators who fail to submit claim data to the Workers’ Compensation Information System, create a three-day waiting period to allow doctors to submit requested records to utilization review physicians, and revise the 24-visit cap on chiropractic care and physical therapy.

The Assembly Insurance Committee Wednesday morning gave unanimous approval to the neuropsychologist QME bill, as well as measures addressing CIGA assessments and asking the Commission on Health and Safety and Workers’ Compensation to study a paperless utilization review system.

The proposal to restore the QME designation for neuropsychologists in AB 2086, by Assemblymen Ken Cooley, D- Rancho Cordova, and Devon Mathis, R-Visalia, is similar to a measure Gov. Jerry Brown vetoed last year.

Cooley and Mathis last year introduced AB 1542 after the Division of Workers’ Compensation moved neuropsychologists, a subspecialty that focuses on treating cognitive impairments caused by brain and spinal cord injuries, into the broader QME designation for all psychologists. Brown vetoed that bill, saying it would undermine the division’s authority to use consistent standards when establishing QME specialties. The DWC also opposed the measure.

Carl Brakensiek, executive vice president of the California Society of Industrial Medicine and Surgery, said there are some key differences between the bill he sponsored last year and the current version.

First, this year's measure adds language that would declare the intent of the Legislature to ensure injured workers with traumatic brain injuries or concussions have access to specially trained providers. Also, the bill expresses the desire of the Legislature to authorize the DWC to appoint QMEs in the specialty of neuropsychology.

Brakensiek also said last year’s bill had a grandfather clause allowing previously designated neuropsychology QMEs to be re-designated. The current measure would require a neuropsychologist to have performed at least five agreed medical evaluations before being appointed as a QME.

He said the DWC was concerned about neuropsychologists essentially being “self-designated” as specialists. But he added that were no complaints about psychologists falsely claiming to be neurological specialists in the 22 years during which the neuropsychology QME designation existed.

“We took that out and said, ‘OK, if we require they do five AMEs, that is independent, third-party verification that they’re qualified,’” he said. “You would have had to convince an applicants’ attorney and a defense attorney” of being qualified to evaluate head injuries on at least five cases.

AB 2086 will now go to the Assembly Appropriations Committee.

The Assembly Insurance Committee also voted unanimously to approve AB 2883 and send that measure to the Appropriations Committee.

The bill, which was introduced by the Insurance Committee, would require the Commission on Health and Safety and Workers’ Compensation to study the feasibility of a paperless process for physicians to submit requests for treatment authorization.

The committee also unanimously passed AB 2710, by Cooley, which would require insurers to recover from policyholders assessments paid to the California Insurance Guarantee Association in the year immediately following payment. The bill would also require carriers to report to CIGA how much they collected from policyholders.

If a carrier collected more than it paid to CIGA, it would be required to remit that payment to the association because carriers are not supposed to profit from surcharges. If the carrier did not collect enough, CIGA would issue a check for the difference, according to CIGA Executive Director Wayne Wilson.

AB 2710 can now be called for a third and final vote by the full Assembly.

The Senate Committee on Labor and Industrial Relations on Wednesday unanimously approved SB 897, by Sen. Richard Roth, D-Riverside. The measure would allow police officers, sheriffs and firefighters to collect salary-continuation benefits in lieu of temporary disability for two years when recovering from a “catastrophic injury.”

The Senate committee also passed SB 914, by Sen. Tony Mendoza, D-Artesia, that would eliminate authorization for medical provider networks to use the American College of Occupational and Environmental Medicine’s guidelines for internal network independent medical reviews.

Both those bills can now be called for a final vote in the Senate.

Also on Wednesday, Mendoza added a number of new proposals to SB 1160, which he recently amended to require employers, carriers and third-party administrators receive accreditation for their utilization-review plans.

The amendments Mendoza adopted on Wednesday do not modify the requirement for UR accreditation by July 1, 2018. But they do change the timeframe for reaccreditation.

Under March 28 amendments to the bill, a UR plan would have to be accredited once every five years. Under the latest amendments, reaccreditation would have to happen once every three years.

Mendoza also added a provision that would increase the maximum penalty for claims administrators who fail to report claim information to the DWC’s Workers’ Compensation Information System to $10,000 from $5,000. And it would require the DWC to post a list of all administrators who are not reporting claim data to the division’s database.

Claims administrators who demonstrate a pattern of not complying with WCIS reporting requirements could also face penalties of not less than $100,000 under the terms of the amended bill. And they could be hit with a stop-work order in the same way employers who don’t have work comp coverage can be forced to shut down until they come into compliance.

The amended bill would also create a 72-hour window during which treating doctors would have the ability to provide any information requested by a utilization review physician. The bill would require claims administrators to give treating doctors at least three days to respond to any request for medical information needed to make a utilization-review decision.

The bill would modify the 24-visit cap on chiropractic and physical therapy visits.

Currently, the cap does not apply to “postsurgical physical medicine and postsurgical rehabilitation services.” The amendments propose to strike “postsurgical” and declare the cap does not apply to “physical medicine and rehabilitation services provided in compliance with a rehabilitation treatment utilization schedule established by the administrative director.” The bill would give the DWC until Jan. 1, 2018, to adopt rules to implement the section.

And finally, the measure would provide that if a specific clinical topic in the Medical Treatment Utilization Schedule has not been updated in five or more years, authorized treatment shall be in accordance with more recent evidence-based treatment guidelines.

Steve Cattolica, director of government relations for CSIMS, said the proposed 72-hour window to submit additional information to a UR reviewer appears to be a “reasonable accommodation.” It would prevent situations in which a UR doctor requests additional information and subsequently denies a treatment request the same day because that information was not provided fast enough.

Assuming the 72-hour window proposed by SB 1160 would stop the clock on the requirement that UR decisions be issued within five days, he said it could be beneficial for claims administrators, treating doctors and injured workers by eliminating the pressure to make a UR decision at the 11th hour when the reviewing physician thinks more information is needed.

Cattolica said he’s not sure what the accreditation requirement would accomplish.

The Utilization Review Accreditation Commission, one of the main UR accrediting firms in the country, does a good job in terms of high-level approval, Cattolica said. But he also said he's not sure whether URAC or other accrediting bodies analyze whether a UR firm complies with rules and regulations specific to a given jurisdiction.

And he said he needs more information about the proposed language modifying the 24-visit cap before he could comment.

Alan Gurvey, managing partner of applicants’ firm Rowen, Gurvey & Win, said the proposals in SB 1600 as described to him by WorkCompCentral suggest lawmakers are getting the message that not everything is working well in California’s comp system.

The system doesn’t necessarily need more rules and regulations, he said, but rules that simplify procedures or create more opportunities for treatment to be approved are a good thing.

“The naysayers will say that moving away from the MTUS, and easing the limitations on chiropractic treatment as well as physical therapy, will create more fraud in the system, both with the doctors and applicants,” he said. “However, obviously people are understanding that legitimately injured workers need better medical attention and that the doctors have to be doctors, and not simply slaves to the insurance companies and employers.”

Gurvey said he thinks increasing administrative penalties for claims administrators who don’t comply with WCIS reporting requirements is a good step. But he also suggested a bigger change that would require some of those penalty payments be directed to injured workers.

Currently, administrative penalties go into the revolving fund that pays for the operations of the DWC.

Gurvey said the “pendulum” in the Legislature has swung too far in favor of employers and insurance companies, but he thinks lawmakers are pushing it back toward the center.

“These proposed changes in law obviously are trying to improve the system for the injured worker, and are not simply trying to legislate against fraud or promote cost containment,” he said. “There needs to be more of this, and this, I believe, is a step that will result in further steps in that direction.”

The Senate Committee on Labor and Industrial Relations is scheduled to hear testimony on SB 1160 during an April 13 hearing.